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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 164 of 19710/21/2011High Court was wrong in allowing the writ appeal"In (1996) 1 Supreme Court Cases 501, Municipal Corporation of Greater Bombay Vs. Industrial DevelopmentInvestment Corporation Pvt. Ltd., it was laid down in paragraph 29 (which has been quoted above) that whenaward was passed and possession was taken the Court would not have exercised the power under Article 226 ofthe Constitution to quash the acquisition.In State Of Rajasthan & Ors vs D.R. Laxmi & Ors (1996) 6 Supreme Court Cases 445 following was laid down inparagraph 9:"Recently, another Bench of this Court in Municipal Corporation of Greater Bombay Vs. Industrial Development &Investment C. (P) Ltd. [C.A. No. 282 of 1989] decided on September 6, 1996 reexamined the entire case law andheld that once the land was vested in the State, the Court was not justified in interfering with the notificationpublished under appropriate provisions of the Act. Delay in challenging the notification was fatal and writ petitionentails with dismissal on grounds of latches. It is thus, well settled law that when there is inordinate delay in filingthe writ petition and when all steps taken in the acquisition proceedings have become final, the Court should beloathe to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of theConstitution to quash the notification under Section 4(1) and declaration under Section 6. But it should beexercised taking all relevant factors into pragmatic consideration. When the award was passed and possessionwas taken, the Court should not have exercised its power to quash the award which is a material factor to betaken into consideration before exercising the power under Article 226."The above decision of the apex Court by three Judges Bench had clearly laid down that the High Court has nodoubt discretionary power under Article 226 of the Constitution of India to quash the notification under section 4and notification under section 6 but it should be exercised taking all relevant factors into pragmatic consideration.As laid own by the apex Court in the Judgment Today 2009 (9) S.C. 537 National Thermal Power Corporation Ltd.Vs. Mahesh Dutta and others that in the event possession of land in respect whereof a notification had beenissued had been taken over, the State would be denuded of its power to withdraw from the acquisition in terms ofSection 48 of the Act. It is true that under the Act after vesting of the possession in the State under section 17(1),there is no provision under which the acquisition can be withdrawn or vesting can be nullified but the exercise ofjurisdiction under Article 226 challenging the acquisition cannot be hedged with any such limitation that court inappropriate case cannot quash the notifications and the entire acquisition proceedings. To hold that after land isvested in the State under section 17(1), the acquisition cannot be quashed would be putting limitation in theexercise of jurisdiction under Article 226 where no such limitation has been contemplated. It is another case thatHigh Court while exercising its writ jurisdiction may take a decision to quash or not to quash the notificationstaking into consideration all relevant factors but that is matter of exercise of power and submission that acqusitioncannot be quashed after vesting of land in favour of the State has to be rejected. In the event, it is accetped thatafter land is vested in the State, acquisition cannot be quashed. Only thing which may be required for the State tosave all acqusition is to somehow take possession under section 17(1) and thereafter to tell the Court that nowthe acquisition cannot be quashed. The Apex Court in Narmada Bachao Andolan (supra) has laid down the courtsare not to perpetuate an illegality rather it is the duty of the Court to rectify mistake. Following was laid down inparagraph 63:"63. The Courts are not to perpetuate an illegality, rather it is the duty of the courts to rectify mistakes. Whiledealing with a similar issue, this Court in Hotel Balaji & Ors. etc. etc. v. State of A.P. & Ors. etc. etc., AIR 1993 SC1048 observed as under: "...To perpetuate an error is no heroism. To rectify it is the compulsion of judicialconscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Piercev. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, everready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead:and courageous enough to acknowledge his errors". (See also Nirmal Jeet Kaur v. State of M.P. & Anr., (2004) 7SCC 558; and Mayuram Subramanian Srinivasan v. CBI, AIR 2006 SC 2449)."In the present case, the issue is already concluded by the judgment of the apex Court. In writ petition No. 5670 of2007 pertaining to village Yakubpur was filed challenging the notification dated 26.9.2006 under section 4 readwith Section 17(1) and Section 17(4) and notification under section 6 dated 19.1.2007. After the notification, theState had taken possession on 27.1.2007. The writ petition was filed in this Court on 31.1.2007 in which writpetition on 9.2.2009, the Division Bench of this Court passed following order:" This writ petition has been filed by the petitioner challenging the land acquisition proceedings dispensing withthe provisions of Section 5A and urgency clause 17(4) and notification under section 4(1) of the Land Acquisition
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 165 of 19710/21/2011Act. There is no interim order in the writ petition. By efflux of time, the writ petition has rendered infructuous as theland has vested in the State free from all encumbrances. The writ petition is dismissed."The petitioners of the writ petition filed a Special Leave Petition in the Supreme Court against the aforesaidjudgment. The leave was granted by apex Court. The appeal was allowed by judgment and order dated 1.2.2010in Civil Appeal No. 1331 of 2010, Kesari Singh and others Vs. Government of U.P. The apex Court gave followingjudgment on 1.2.2010. :"Leave granted. Heard.2. The appellants' land was said to be acquired by issuing the notification dated 26.09.2006 under Section 4(1)read with Section 17(4) of the Land Acquisition Act, 1894 dispensing with Inquiry under Section 5A followed byfinal notification dated 9.1.2007 issued under Section 6 of the said Act. The appellants challenged the acquisitionnotifications by filing a writ petition in the year 2007. The writ petition was dismissed by the High Court by a shortorder dated 9.2.2009 stating that the petitioner has become infructuous because there was no interim order. Thesaid order is challenged in this appeal by special leave.3. We have issued notice to show cause why the matter should not be remanded to re-consider the writ petition inaccordance with law. Even though the notice is served, the respondents have not chosen to contest theproceedings.4. When a writ petition is filed challenging the acquisition, merely because the interim stay was not granted, thewrit petition does not become infructuous. If the writ petitioner is able to satisfy the court that the writ petition hasto be allowed on merits, he may be entitled to appropriate consequential reliefs. Even if the possession of the landhas been taken and used for a public purpose, it may be possible to grant other reliefs say, deeming asubsequent date, instead of the date of Section 4(1) notification as the date of acquisition for purposes ofcalculating the compensation, or directing delivery of a plot etc. In some cases, even restitution may bepermissible. Be that as it may. What is relevant to notice is that the petitioner will not become infructuous merelybecause of non-grant of stay.5. In view of the above, this appeal is allowed, the order dated 09.02.2009 of the High Court is set aside and thewrit petition is restored to the file of the High Court. We request the High Court to dispose of the matter on merits,expeditiously particularly having regard to the fact that there is no interim order."The Apex Court had set aside the Division Bench judgment of this Court and has laid down that even if thepossession of the land has been taken it maybe possible to grant other reliefs. The Court also observed that evenrestitution may be permissible. The above judgment of the apex court clinches the issue and the issue has to beanswered against the respondents and submission made by learned counsel for the respondents that thepetitioners cannot be permitted to challenge the land acquisition proceedings after vesting of the land has to berejected.10. Section 11 A Lapse of Acquisition:Learned counsel for the petitioners have submitted that after publication of declaration under Section 6 of the Act,in none of the cases award has been made under Section 11 within two years from the date of publication, hence,the entire proceedings for acquisition of the land has lapsed. Section 11 A of the Act is as follows:11A. Period within which an award shall be made. - (1) The Collector shall make an award under section 11 withina period of two years from the date of the publication of the declaration and if no award is made within that period,the entire proceedings for the acquisition of the land shall lapse:Provided that in a case where the said declaration has been published before the commencement of the LandAcquisition (Amendment) Act, 1984 the award shall be made within a period of two years from suchcommencement.Learned counsel for the respondents refuting the submission made by counsel for the petitioners contends that inall the acquisitions under challenge Section 17(1) was invoked and the possession was taken of the land afterissue of notice under Section 9 and land has vested in the State under Section 17 sub Section (1) hence Section11-A has no application.Learned counsel for the respondents submitted that Section 11 A applies in the cases where Section 17 has notbeen invoked and in cases where Section 17 has been invoked, there is no applicability of Section 11-A.
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